Opinion
May 31, 1949.
In an action under section 36-a Lien of the Lien Law by a subcontractor to impress a trust on funds received by an assignee of the contractor from the owner of real property, the assignee moved for summary judgment on the grounds that (1) the subcontractor acquired no rights in the absence of the filing of a mechanic's lien prior to the assignment to the assignee (appellant) on July 29, 1947, and the payment of $2,000 to appellant by the owner pursuant to the assignment on September 9, 1947; (2) the subcontractor acquired no rights because the funds were never in the hands of the contractor but went directly from the owner to the appellant (the contractor's assignee); and (3) only a judgment creditor may maintain an action under the section. Order denying appellant's motion for summary judgment affirmed, with $10 costs and disbursements. The amendment to section 36-a Lien of the Lien Law, effective September 1, 1942 (L. 1942, ch. 808, § 4), authorizes the maintenance of this action. Carswell, Acting P.J., Johnston, Adel, Sneed and Wenzel, JJ., concur.